Abstract/Summary

The European Court of Human Rights (ECtHR) has played a pioneering role in advancing human rights across Europe through its interpretation of the European Convention on Human Rights (ECHR). Despite this success, the Court’s legitimacy has come under scrutiny. Critics argue that the ECtHR has either overstepped its authority by expanding the treaty's obligations beyond their original intent or, conversely, has failed to go far enough in protecting fundamental rights. Early in its jurisprudence, the Court rejected originalism, opting instead for the “living instrument” doctrine, which interprets the Convention in light of present-day conditions. While this doctrine has been central to the ECHR’s success, it has also sparked controversy due to the expanding list of obligations it imposes. This inflation of rights has raised concerns about the undefined limits of the Court’s power, leading to growing dissatisfaction with the Convention system. The ECtHR’s direct influence on domestic constitutional orders makes it crucial to clearly define the boundaries of its dynamic interpretation method, safeguarding it from accusations of acting undemocratically. In effect, the ECtHR finds itself in a tenuous position when interpreting the broad treaty provisions. To ensure the continued success of the Convention system, it is essential that the Court’s interpretive approach is perceived as legitimate. Currently, the ECtHR employs two key methods to give effect to the living instrument doctrine: European consensus (EuC) and evolutive interpretation (EI). EuC assesses the practices of the majority of High Contracting Parties (HCPs) to determine the content and scope of rights, while EI focuses on identifying the underlying principles of each article and, through moral interpretivism, determines the protection each provision demands. Although these approaches are used interchangeably, the Court offers little justification for when and why it chooses one method over the other. Both methods have strengths and weaknesses, but neither can independently secure long-term legitimacy if adopted as the sole interpretive approach. This thesis argues that a more structured approach is needed to determine when EuC or EI is the most appropriate method. Such an approach, I suggest, requires reference to theories that explain the nature of rights. Moral accounts focus on the philosophical normative foundations of rights; political accounts on the role of rights which human polities. My approach is to seek to draw on both frameworks: I do so by surveying the existing practice of the ECtHR to determine the moral values underpinning its approach. I conduct a case study of Article 8 jurisprudence relating to LGBT rights, which provides an understanding of how the Court balances individual rights and majoritarian preferences. Striking the delicate balance between these two values is critical to the Court’s role in protecting human rights while maintaining the sovereignty of HCPs. Central to attaining a justifiable balance, I argue, is the distinction between the urgency of interests, with more important interests requiring greater judicial supervision and intervention. Through utilising core rights theories, this thesis develops an interpretive framework that distinguishes between core and non-core interests. This framework, it is argued, can guide the Court in using the living instrument doctrine in a way that aligns with its mandate to protect fundamental rights while acknowledging its institutional limitations. Specifically, I argue that more urgent interests necessitate the use of the more dynamic EI approach; less pressing interests can be subject to the gradual evolution afforded by EuC, which better suits the Court's role as a subsidiary mechanism. By responding both to the nature of rights and the political dimension within which the Court operates, this approach aims to strike a balance between effective rights protection and clearly defined limits to the ECtHR's power. Ultimately, this thesis demonstrates that the core interpretive framework is essential for securing the Court's legitimacy and ensuring the future stability of the Convention system.